Facts:

The Respondent and Appellant entered into a simple contract of sale of 4 million litres of Premium Motor Spirit (PMS) under which the Respondent as the buyer paid the sum of N220 million to the Appellant (seller/supplier) through its own bank account and the bank account of other companies that it claimed were its affiliates. The Respondent asserted that before it made the payment for the product, the Appellant made representation to it that it was in possession of that amount of PMS for immediate supply, which representation turned out to be false. Upon discovery of the misrepresentation, the Respondent demanded the refund of the sum of N220 million it paid the Appellant, but only N107.5 Million out of N220 million was refunded to it leaving a balance of N102.5 million unpaid.

In attempt to recover the balance owed, the parties executed an Assignment and Novation agreement dated 24th January 2012 in which they agreed that the Appellant would pay interest on the principal sum owed for the loss of profit based on agreed margin of N4.00 per liter of N20 million for the month of December 2011 and N10 million for every subsequent month from January 2012 that the principal amount remains unpaid. Yet the Appellant defaulted in refunding the sum owed. Aggrieved after repeated and unsuccessful demands for the refund of the outstanding amount and agreed interest, the Respondent instituted an action for recovery of its money against the Appellant.

The Appellant denied the claims of the Respondent and asserted that the Respondent was aware that the 4 million litres of the PMS was not immediately ready for supply. Trial commenced and each party called one witness who tendered several documents in support of its case. At the conclusion of the trial, the learned trial Judge entered judgment for the Respondent against the Appellant and ordered it to pay the Respondent the sum of N102.5 million being balance outstanding from the N220 million paid to the Appellant for the failed contract of sale or PMS, with interest at 21% per annum from January 2012 to the date of the judgment and thereafter at 10% per annum till liquidation.

Dissatisfied, the Appellant appealed to the Court of Appeal and relied on six (6) grounds of appeal praying the appellate Court to allow its appeal, set aside the judgment of the trial Court and dismiss the Respondent’s claims.